Information Access Case Note: Hickey v Secretary, Department of Education [2021] NSWCATAD 306

Read the decision here:  Hickey v Secretary, Department of Education [2021] NSWCATAD 306

Summary

The Tribunal reviewed the three decisions by the Secretary, Department of Education (respondent) to refuse to deal with two access applications made by Ms Hickey (applicant) under the Government Information (Public Access) Act 2009 (GIPA Act). The access applications were made in September and October 2019 on behalf of 21 students who attend Walgett Community College (administered by the respondent), one former student and 11 parents. The Respondent provided access to some information on the amended October access application but exercised the statutory discretion under
s. 60(1)(a) in part, that dealing with the access applications would require an unreasonable and substantial diversion of resources.  The Tribunal determined the matter by giving weight to the various factors under s. 60(3A) and s. 60(3B) according to the evidence provided by the parties. The Tribunal considered that the s. 60(3A) factors were not determinative of s. 60(1)(a) and found that the respondent did not provide evidence sufficient to support the s. 60(3A) factors or to outweigh the s. 60(3B) considerations for the inherent public interest in, or the demonstrable importance of, the information to the applicant. The Tribunal also considered the Information Commissioner’s submissions under s. 104(1) which outlined the general principles applicable to the s. 60 discretions to refuse to deal with an access application, the requirement on agencies under s. 60(4) to assist applicants, and the interpretation of the s. 60(3A) and s. 60(3B) factors. The Tribunal set aside the decisions and remitted the decisions for reconsideration under s. 65 of the Administrative Decisions Review Act 1997 (ADR Act).

What you need to know

This decision deals with the Respondent’s decision that dealing with the application would be a substantial and unreasonable diversion of resources and the balancing test set out at s60(3B). This is the first decision where the Tribunal applied a weight classification to each item of evidence in applying and balancing the s. 60(3A) and s. 30(3B) factors. The Tribunal applied and designated a weighting amount of strong, moderate or little weight to the evidence in the balancing exercise.  

The decision confirms that:

• the factors in s. 60(3A) are not, on their own, determinative of whether dealing with the access application would require an unreasonable diversion of resources;  
• the s. 60(3A) factors must, on balance, outweigh the factors in section 60(3B) involving the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant;
•  there is no ’40 hour limit’ rule for the time factor in s. 60(3A)(b), and that the fact that the agency is not able to process the application within the s. 57 time period is not determinative (s. 60(3A)((c));
• whether an agency is large and well-resourced will generally be relevant (s. 60(3A)(a)); and
• evidence to demonstrate the reasonableness of an asserted diversion of resources is required.

The decision assists agencies by identifying the types of evidence required to demonstrate the factors in s. 60(3A) and confirms that while the applicant is required to show the demonstrable importance of the information under s. 60(3B), the onus is on the agency to consider these factors in the weighing exercise.  

Legislative background

GIPA Act

Section 58(1)(e)

Section 60(1)(a)

Sections 60(3A) and 60(3B)

Section 100

ADR Act

Section 65 (remit decision)

Factual background

In September 2019, the applicant made an access application for information concerning suspensions and teacher training at Walgett Community College between 2010-2020. The applicant identified 22 categories of information, with some including subcategories of information.  The applicant and respondent consulted on the access application made in September to reduce the scope of information sought, with a new amended application being made in October by the respondent resulting in a further decision. This background is recorded by the Tribunal at [2]-[5]. The Respondent made three decisions, with the notices of decisions dated 9 November 2020, 10 December 2020, and a decision made by internal review (of the 9 November decision) on 25 January 2021 . All the decisions refused to deal with the access application under s. 58(1)(e) and applied (in part) the statutory discretion in s. 60(1)(a) that dealing with the access application would involve a substantial and unreasonable diversion of the agency’s resources.

The applicant applied to the Tribunal for administrative review of both the decision dated 10 December 2020 and the review decision of 25 January 2021. The Information Commissioner exercised her right to appear and be heard in the review of these decisions under s. 104(1) of the GIPA Act.  

Tribunal findings

The Tribunal at [26]-[28] confirmed that the factors which are identified under ss. 60(3A) and 60(3B) with respect to s. 60(1)(a) are drawn from previous Tribunal decisions, including, Cianfrano v Director General, Premier's Department [2006] NSWADT 137 (“Cianfrano factors”) and Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (“Colefax factors”).  In referring to Ruyters v Commissioner of Police [2020] NSWCATAD 223, the Tribunal at [29] confirmed that:

… the tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency’s resources are to identify, and take into account, any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an application on the basis that it would require an unreasonable and substantial diversion of its resources.

The Tribunal at [79]-[94], cited the Information Commissioner’s submissions on the application of the s. 60(1)(a) discretion to an access application, including how these statutory requirements apply to the Applicant’s access circumstances:

• the s. 60(1)(a) discretion is to be exercised so as to enhance the objects of the Act in s. 3
• the Cianfrano factors continue to be relevant, but that there is no 40-hour threshold or ‘rule’ for the purposes of s. 60(1)(a)

• it is relevant to consider the fact that the Applicant seeks government information in which there is an inherent public interest referred to in s. 60(3B), rather than the public interest considerations in favour of the particular information sought
• the demonstrable importance of the information to the Applicant may be to assist the Applicant to engage with Walgett Community College about solutions to support students, and in exercising rights under an Act or law, such as assisting the applicant to commence a class action against the college
• the express reference to an “agency’s size and resources” in s 60(3A) indicates that whether the agency in question is large and well-resourced will generally be relevant considerations for the Tribunal, but the Information Commissioner would caution against a broad application of the finding in Hanna v NSW Ministry of Health [2019] NSWCATAD 21  and Loussikian v University of Sydney [2018] NSWCATAD 140  that it is a matter for the Respondent to determine what resources it makes available to process GIPA access applications.

Consistent with the Information Commissioner’s submissions cited at [88], the Tribunal at [103] contrasted the Tribunal’s previous position in Loussikian v University of Sydney [2018] NSWCATAD 140  at [50] and Hanna v NSW Ministry of Health [2019] NSWCATAD 21  at [41] that it is a matter for an agency to determine what resources are made available for access applications, and stated that “the express reference to “the agency’s size and resources” in s 60(3A) now makes it clear that whether the agency in question is large and well-resourced will generally be relevant to the Tribunal’s determination regarding matters under s 60(1)(a) of the GIPA Act”.

The Tribunal at [92] also noted the Information Commissioner’s submissions on the importance of
s. 60(4) in undertaking the administrative review, whereby the Tribunal must be satisfied that the respondent sufficiently assisted the applicant to narrow the scope of the application. 

Section 60(3A) considerations

The Tribunal at [50]-[57] considered the respondent’s evidence for the time to process the application that:

• the requested information comprises paper and electronic records, including legacy records which are not centrally located
• more than 5000 pages of paper records may be produced
• between 431.5 and 594 hours, or possibly more, would be required to process the remainder of the application and Mr Rigney estimated between 125.5 and 195 hours’ work will be required to comply with category (v) alone.

In considering the factor of the agency’s size and resources in s. 60(3A), the Tribunal at [104] was satisfied that the respondent is a large agency and that it has substantial resources. The Tribunal at [105] also noted the applicant’s submission that there is no evidence about: (1) how each division of the Respondent would respond to the relevant requests for information; (2) who within those divisions would have that responsibility; and (3) what other tasks they would be diverted from. 

The Tribunal at [106] gave considerable weight to the applicant’s argument that there is no “40-hour benchmark” that applies to GIPA applications and that the Tribunal should consider the significant public interest considerations in favour of disclosure of the information, and the clearly demonstrable importance of the information to the applicant. 

In considering that the time to respond to the application would exceed the s. 57 statutory time frame at [107]-[108], the Tribunal also gave moderate weight to the applicant’s argument that this factor is not determinative or that this factor should be given much weight, given the evidence of its size and available resources, and the lack of evidence supporting most time estimates.

Section 60(3B) matters

The Tribunal at [112] affirmed the interpretation of the term ‘general public interest’ in s. 60(3B) in Ruyters that it should be given the same meaning as in s. 12(1), which is the inherent public interest in the disclosure of any government information.

On considering the available evidence, the Tribunal at [113]-[115] was also satisfied that the requested information is of significant importance to the applicant and that she wants the information to enable her to understand what is happening at Walgett Community College, to explore whether the school acted in breach of its duty of care to ascertain whether there are possible options for making a claim against the School. 

The Tribunal also noted that the evidence was not challenged by the respondent and was satisfied that the applicant’s concerns and purpose are consistent with those of the other 21 applicants. The Tribunal at [115]-[116] found that:

While the Respondent considered the s 60(3B) factors in both the decision dated 10 December 2020 and the internal review decision, I accept the Applicant’s argument that it did so in a cursory manner only and that it did not properly grapple with their force. For example, I note that in the decision dated 10 December 2020, the Respondent asserted that there were options available outside GIPA to enable the Applicant to obtain information held by it and that this reduces the weight given to this factor.

However, as the Applicant correctly argues, the Respondent did not identify any other options that are available to her and/or whether such options are realistically accessible and/or viable. I accept the Applicant’s argument that this statement is a bare assertion and I have decided that it should be afforded minimal weight.

The Tribunal set out its conclusions at [117]-[124] as follows:

• the fact that much of the requested information relates to the Applicant’s children weighed heavily in the balance as a s. 60(3B) as a factor for the demonstrable importance of the information
• while the categories of information in the second amended application appear voluminous, the agency is large and well-resourced and there is no evidence that directly supports the Respondent’s time estimates
• the applicant provided numerous examples where estimates were significantly reduced by the respondent after further consideration 
• while the Tribunal accepted that it may not be possible for the Respondent to process the application within the permitted s 57 timeframe, this factor is not determinative.

Tribunal outcome

The Tribunal (at [125]) made orders setting aside the decisions under review and remitted the application to the Respondent for reconsideration under s. 65 of the ADR Act.